Final Order 1

Order Details: Other
Pdf Text: MHCC010134292019
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
SUMMONS FOR JUDGMENT NO. 299 OF 2019
IN
SUMMARY SUIT NO.595 OF 2019
CNR No. MHCC010134292019
Mr. S. Karuppaya S/o. Mr. Sundaram
an adult, Indian Inhabitant
Residing at Fatimabai Chawl, Near Peela
Buglow, Dahravi Mumbai- 400 017. ... Plaintiff
V/s.
Mr. C. Venkatachalapathy
an adult, Indian Inhabitant
Residing at 16, Ground Floor, Plot No. 262,
Poonawalka Chawl, Dharavi Main Road,
Opp. Abhudaya Bank, Dahravi,
Mumbai- 400 017. Mob No. 916755799. ... Defendant
Appearance:-
Adv R.S. Tripathi for the Plaintiff.
Adv. Dr. Arumugam for the Defendant.
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CORAM : HER HONOUR AD-HOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.61).
DATE : 03.02.2022
ORDER
(Dictated and pronounced in Open Court.)
1. The plaintiff has brought this Summons for Judgment thereby
directing the defendant to pay a sum of Rs.20,00,000/-. with the
interest @ 24% per annum from the date of filing of the suit till its
realization.
2. Perused the documents on record.
3. In short it is the case of the plaintiff that the suit is filed for
recovery of Rs.20,00,000/-. Three different cheques of dtd.20.2.2019
vide cheque no.958672, 958673 and 958671 respectively were issued
by defendant with regard to flat purchasing transaction and recovery is
claimed alongwith interest at the rate of 24% on the principal sum. The
defendant is a drawer of promissory note dtd. 18.10.2016 which is
notarized before the notary officer. The defendant took undue
advantage of their friendship and the need of plaintiff for purchase of
flat. The transaction is explained in the suit plaint. It is submitted that
the defendant had deceived the plaintiff with regard to the transaction
of purchase of residential flat, got executed promissory notes, but
neither completed the purchase transaction nor given possession of the
said flat to the plaintiff though received Rs.23,00,000/- consideration
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from him. The above mentioned cheques issued by the defendant for
repayment got dishonored for reason of “insufficiency of funds” hence
the suit for recovery of said outstanding dues is filed against the
defendant. Therefore, it is prayed that the summons for judgment may
be made absolute.
4. The defendant appeared on Summons for Judgment and
filed reply/leave to defend after condonation of delay and grant of
permission by the court in NM no. 4964/2019 on the following
grounds:-
i) No cause of action arose against the defendant.
ii) Suit is not maintainable as a summary suit as ingredients of
Order -XXXVII Rule -02 of the C.P.C are not attracted to the facts and
circumstances of the present suit.
iii) There are triable issues involved and the defendant are
entitled to unconditional leave to defend.
iv) It is said that the first promissory note dtd. 30.4.2013 was
not acted by the plaintiff and the cheques drawn on Syndicate Bank,
Prabhadevi Branch were not deposited and encashed by him. Therefore,
promissory note become null and void. Second promissory note dtd
15.10.2016 is again a wrong promissory note as the plaintiff has added
the name of one person namely Mr. Arumugam S. Thever. Therefore,
both the promissory note are invalid. The plaintiff has misused the
blank cheques signed by the defendant which were obtained by him
from defendant by using force. Therefore, the plaintiff is not entitled for
any recovery from the defendant.
5. The plaintiff has placed rejoinder on record on the point of
validity of promissory notes. It is said that the cheques issued by
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defendants on first promissory note dtd. 30.4.2013 for Rs.4,00,000/-
each were not deposited due to the reason of grievance with the
defendant. Further, the defendant issued another three cheques which
are disputed in this matter. The promissory note dtd. 18.10.2016 is duly
signed by the defendant. Therefore, the promissory note cannot be said
to be invalid. Further, it is said that Mr. Arumugam S. Thever is the
brother-in-law of defendant and he signed and confirmed the
promissory noted dtd. 18.10.2016. The cheques which were issued by
the defendant at the time of first promissory note were not deposited by
the plaintiff at the request of said person. Therefore, the promissory
note in the name of Arumugam is valid.
6. The advocate for defendant has made submission that
defendant has raised triable issues in this matter, hence he is entitled to
get unconditional leave to defend.
7. Here, I would like to make emphasis on the landmark
authority on the point of principles regarding trial in summary suits and
the considerations required for grant of leave to defend. Said authority
is in the case of IDBI Trusteeship Services Ltd. V/s. Hubtown Ltd.
reported in 2017 (1) SCC 568. I have gone through said authority. It
transpires that the court has granted conditional leave to the defendants
on the ground that they have raised triable issues. The principles as to
grant of leave to defend in summary suit are curled out in IDBI
Trusteeship Services Ltd V/s. Hubtown Ltd reported in 2017 (1) SCC
568. The same are reproduced here for the sake of convenience :-
“17. Accordingly, the principles stated in para 8 of Mechelec
case will now stand superseded, given the amendment of order 37 Rule
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3 and the binding decision of four Judges in Milkhiram case, as
follows :
17.1 If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2 If the defendant raises triable issues indicating that he has
a fair or reasonable defence, the plaintiff is not entitled to sign
judgment, and the defendant is ordinarily entitled to unconditional
leave to defend.
17.3 Even if the defendant raises triable issues, if a doubt is left
with the trial Judge about the defendant’s good faith, or the
genuineness of the triable issues, the trial Judge may impose conditions
both as to time or mode of trial, as well as payment into court or
furnishing security. Care must be taken to see that the object of the
provisions to assist expeditious disposal of commercial causes is not
defeated. Care must also be taken to see that such triable issues are not
shut out by unduly severe orders as to deposit or security.
17.4 If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode
of trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or security
or both can extend to the entire principal sum together with such
interest as the court feels the justice of the case requires.
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17.5 If the defendant has no substantial defence and / or raises
no genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be refused,
and the plaintiff is entitled to judgment forthwith.
17.6 If any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit,
(even if triable issues or a substantial defence is raised), shall not be
granted unless the amount so admitted to be due is deposited by the
defendant in court.”
8. We have to analyse the present set of facts in order to
determine which principle is attracted here.
9. I have perused the record and heard respective advocates
for the plaintiff and defendant at length. It reveals that complex issues
are involved in this matter. Apparently, some transaction regarding
purchase of land has taken place in between the parties. However, it
also transpires that the pleadings are in respect of execution of
promissory notes by the defendant in favour of plaintiff and also with
regard to issuance of cheque for discharging the liability for not
performing the necessary contract for handing over of possession of flat
to the plaintiff. It reveals that the transaction is not only in respect of
negotiable installments. Certain transactions took place in-between the
parties and said transactions became controversial between them. Such
transaction creates triable issues and therefore the same cannot be
decided in a summary manner. It appears that the defendant has raised
different triable issues. It is disputed whether the transaction took place
and whether the alleged promissory notes giving rise to legal liability
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are valid or not. In such circumstances, I hold that it is to be
determined as to whether cause of action for filing of the suit arises in
favour of plaintiff or not.
10. On perusal of leave to defend moved by the defendant it
transpires that they have raised objection to the tenability of the suit
and denied the suit claim in toto. However, the record shows that there
must be some transaction in between the parties. Everything is not in
air. Even for issuance of blank cheques or for obtaining blank cheques,
or for execution of document like promissory note the parties must be
acquainted with each other either directly or through others. It is not
firmly contended by the defendant that no such promissory notes were
drawn. The plaintiff may have some case on merit. At the same time,
the defendant has raised certain substantial defenses challenging the
relief claimed by the plaintiff. There are many questions put forth by the
parties. The questions are whether any cause of action arose for the
filing of the suit, whether the provisions of Order XXXVII are attracted
or not and whether plaintiff is entitled for recovery or not. The
submissions and contentions made by the defendant leads to the
inference that the defendant has plausible defence and the controversy
has to be decided on merit. However, doubt is left as to genuineness of
triable issues. To my mind, present case may comes within the preview
of clause 17.3 of the authority of IDBI Trusteeship as cited supra.
11. This Court neither intend to comment on the merits of the
case as this is not the stage of passing order on merit or appreciation of
evidence. But this case being a case based on contract between the
parties, it becomes necessary to assess the merits of case on the strength
of the averments and contentions raised by the parties and the
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documents produced in support of said averments and contentions. It
is also necessary to adjudicate the case on the basis of evidence as to
find out as to whether defendant is liable to pay the amount claimed by
the plaintiff or not. The issues so raised can not be brushed aside on the
count of procedure of summary suit.
12. In this background, I hold that the that defendant has
successfully made out a case to allow them to leave to defend this suit.
Defendant has plausible defence. Therefore, the defendant should be
allowed leave to defend. However, if the defendant fails to prove the
defence, or the genuineness of issues is not established, he will have to
pay the amount claimed by the plaintiff. The amount comes around
Rs.20,00,000/- with interest at the rate of 24% p.a. The suit is filed
under Order XXXVII of C.P.C for getting speedy recovery. Therefore,
considering said circumstances, I hold that this court can grant leave to
the defendant to defend the suit subject to payment of certain amount
as security for expeditious trial to justify the ends of justice and to keep
balance between legitimate claim and defence.
13. In consequence, I hold that the Summons for Judgment is
liable to be dismissed. Hence, the following order is passed.
ORDER
1. Summons for Judgment No.299 of 2019 is dismissed.
2. Leave to defend is granted to defendant on
depositing the amount of Rs.2,00,000/- in court in
Summary Suit No. 595/2019 within 4 weeks of passing of
this order and also directed to file written statement on
record.
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3. Costs in cause.
4. Summons for Judgment No.299/2019 is disposed off
accordingly.
Date: 03.02.2022.
(A.H.KASHIKAR)
AD-HOC Judge,
City Civil Court,
Gr.Mumbai.
(Court Room No.61)
Dictated on : 03.02.2022
Typed on : 03.02.2022
Signed on : 04.02.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
4.2.2022 04.00 p.m. ( K.M. Rana )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ A.H.KASHIKAR (C.R.No.61)
Date of Pronouncement of
JUDGMENT/ORDER
3.2.2022
JUDGMENT/ORDER signed by
P.O.on
4.2.2022
JUDGMENT/ORDER uploaded on 4.2.2022
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